An employee holds Apple's iPhone 4S (left) and Samsung's Galaxy S III at an electronics store in Seoul, South Korea. Some U.S. phone designers are now conflicted over what a recent decision that Samsung infringed on Apple mobile phone patents will mean for their work.

Lee Jae-WonReuters/Landov

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Originally published on September 10, 2012 5:52 pm

A lot of thought goes into giving your smartphone a distinctive look and feel, from the shape of the speaker — square, round or oval — to where to put the buttons — side, front or back.

But industrial designers like Robert Brunner say he doesn't have a lot of room to be creative.

"Because you're really being so heavily driven on maintaining a minimal physical size," he says. "So you really get into this very fine envelope of a few millimeters that you have to work with."

Brunner should know. His firm, Ammunition Group, is in the midst of designing phones for both Android and Windows operating systems. Recently Samsung was found guilty of infringing on many of Apple's mobile phone patents; among them were design patents.

Brunner says it's easy to get a design patent — he has many — so he wasn't surprised Apple had one that sounds like nothing: a rectangle with rounded edges and a button at the bottom.

"You can do a design patent on anything. You could do a circular thing with a dot on it and I can go and do a cosmetic patent," he says.

Brunner says most companies rarely sue people with design patents unless something is actually a counterfeit. In part, that's because designers always get inspiration from other designers.

That was absolutely true of the late Apple founder and CEO Steve Jobs.

In 1994, Jobs described how he and Apple come up come up with their new products. "It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing," Jobs said. "Picasso had a saying: 'Good artists copy. Great artists steal.' "

Jobs was well-known for doing a little stealing. Jobs and Apple made the mouse popular, but Jobs got the idea for it from an inventor at Xerox. And Brunner says those clean lines and simple, pared-down devices are directly descended from the European minimalists of the '50s and '60s. That is why Brunner was completely surprised when Apple won its case against Samsung. Now, he's worried that it will be harder to get new designs past the lawyers.

"It could create fear with people in terms of anything that even comes close to looking like an Apple product," Brunner says.

There are multibillion-dollar industries — like fashion — that rarely use patents.

"Fashion revolves around trends and trends revolved around copying," says Kal Raustiala, a law professor at UCLA and author of The Knockoff Economy. "So copying acts like a turbocharger on the fashion cycle — makes it turn even faster, and that spurs designers to dream up new designs."

Raustiala did a study of the fashion industry, and it turns out that even though it didn't depend on patents, it was highly creative. He's not talking about the knockoff of a Louis Vuitton handbag. It's designs like jeans with a tapered leg or shoes with a pointy toe that set a trend. If you were to suddenly have companies suing everybody for patent infringement, Raustiala says, "you would see, I think, a strong chilling effect of the cases at the margin where something looks I think a little bit like something else but not very much, so people will be cautious and they'll spend time consulting with lawyers and all of that is quite expensive and also kind of gums up the creative process."

Raustiala admits that it's a lot easier to make a pair of pants than an iPhone. But he doesn't like the direction that Apple has taken.

Yet there are designers like Gadi Amit who are happy about Apple's patent victory over Samsung. Amit feels like Apple's style has dominated everything including how his clients expect his designs to look.

"Whenever we designed something that was slightly different there was a pushback," Amit says.

Amit says he's perfectly happy to design a phone that is not a rectangle with rounded corners. "You could design a phone with sharp corners. It will be beautiful, useful, amazingly elegant phone. I know that," Amit says.

Amit says there are already great phones on the market that don't look at all like an iPhone. Lisa Osborn loves her Windows phone. In her case, it is a Samsung Focus Flash. Osborn says it looks different from other phones and people notice and ask her what kind of phone it is.

Osborn says she doesn't mind the sharper edges. The software also looks really different. Instead of little icons there are big square tiles.

Nokia has just put out several new phones with Windows, and they even come in blue. The Windows phone has gotten great reviews of its design. Unfortunately, it's still not selling very well.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

LAURA SYDELL, BYLINE: There's also something that people are talking about when it comes to Apple and the mobile phone market that's connected to the recent case where Apple won a patent suit against Samsung, and that case involved a lot of design patents. And designers working on phones are now a little bit conflicted over what that case means for them. A lot of thought goes into your smartphone. You want to make it look distinctive. The designers are trying to think about what shape the speakers should be. Should it be square, round or oval? Or where should we put the buttons? Side, front, back. But I spoke to some industrial designers, designers like Robert Brunner, and he says he doesn't have a lot of room to be creative.

ROBERT BRUNNER: Because you're really being so heavily driven on maintaining a minimal physical size, right? So you really get into this very fine envelope of a few millimeters that you have to work with.

SYDELL: Brunner should know. His firm, Ammunition Group, is in the midst of designing phones for both Android and Windows operating systems. Brunner says it's easy to get a design patent - he has many - so he wasn't surprised that Apple had one that sounds like nothing, a rectangle with rounded edges and a button at the bottom.

BRUNNER: You can do a design patent on anything. You know, I could do a circular thing with a dot on it, and I can go and do a cosmetic patent.

SYDELL: Brunner says most companies rarely sue people with design patents unless something is actually a counterfeit. In part, that's because designers always get inspiration from other designers. That was absolutely true of the late founder and CEO of Apple, Steve Jobs. Here's Jobs in an interview from 1994. This is how he and Apple come up with their new products.

(SOUNDBITE OF ARCHIVED BROADCAST)

STEVE JOBS: It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things into what you're doing. I mean, Picasso had a saying, he said: Good artists copy. Great artists steal.

SYDELL: Jobs was well known for doing a little stealing. Jobs and Apple made the mouse popular, but Jobs got the idea for it from an inventor at Xerox. And Brunner says those clean lines and simple, pared down devices are directly descended from the European minimalists of the '50s and '60s. That is why Brunner was completely surprised when Apple won its case against Samsung. Now, he's worried that it will be harder to get new designs past the lawyers.

BRUNNER: It could create fear with people in terms of anything that even comes close to looking like an Apple product.

SYDELL: There are multibillion dollar industries, like fashion, that rarely use patents.

SYDELL: Kal Raustiala, a law professor at UCLA and author of "The Knockoff Economy."

RAUSTIALA: So copying acts like a turbo charger on the fashion cycle, makes it turn even faster, and that spurs designers to dream up new designs.

SYDELL: Raustiala did a study of the fashion industry. And it turns out that even though it didn't depend on patents, it was highly creative. He's not talking about the knockoff of a Louis Vuitton handbag. It's designs like jeans with a tapered leg or shoes with a pointy toe that set a trend. If you were suddenly to have companies suing everybody for patent infringement...

RAUSTIALA: You would see, I think, a strong chilling effect of cases at the margin where something looks a little bit like something else, but not very much. So people will be cautious, and they'll spend time consulting with lawyers. And all of that is quite expensive and also kind of gums up the creative process.

SYDELL: Raustiala admits that it's a lot easier to make a pair of pants than an iPhone. But he doesn't like the direction that Apple has taken. Yet, there are designers like Gadi Amit, who are happy about Apple's patent victory over Samsung. Amit feels like their style has dominated everything, including how his clients expect his designs to look.

GADI AMIT: Whenever we design something that was slightly different, there was a pushback.

SYDELL: Amit says he's perfectly happy to design a phone that is not a rectangle with rounded corners.

AMIT: You could design a phone with sharp corners. It will be beautiful, useful, amazingly elegant phone. I know that.

SYDELL: Amit says there are already great phones on the market that don't look at all like an iPhone. Lisa Osborn loves her Windows phone. In her case, it's a Samsung, specifically the Focus Flash. Osborn says it looks different from other phones and people notice.

LISA OSBORN: Like, I'll pull it out to check something and if they're facing me, like let's say we're chatting, they'll go, what is that? And I'm always like, what do you mean? And then they'll say, what kind of phone is that? And I'll say, oh, it's a Windows phone. And they go, a Windows phone? And then the brow furrows.

SYDELL: Osborn says she doesn't mind the sharper edges. The software also looks really different. Instead of little icons, there are big square tiles. Nokia has just put out several new phones with Windows, and they even come in blue. The Windows phone has gotten great reviews of its design. Unfortunately, it's still not selling very well. Laura Sydell, NPR News, San Francisco. Transcript provided by NPR, Copyright NPR.